Dear  
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.    
       
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 11 December 2020.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application and personal statement, together with all material submitted in support thereof, relevant portions of your naval record, an Advisory Opinion (AO) from a qualified mental health provider, your AO rebuttal materials, and applicable statutes, regulations and policies, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo).   
 
The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You enlisted in the Navy on 5 October 1987.  Your pre-enlistment physical and medical history noted no psychiatric or neurologic conditions or symptoms.  On 24 June 1988 you received non-judicial punishment (NJP) for unauthorized absence (UA).  On 8 December 1988 you received an additional NJP for UA.  On 22 December 1988 you received a “Page 13” counseling sheet documenting multiple violations of the Uniform Code of Military Justice and warning you that any further deficiencies in your performance and/or conduct may result in disciplinary action and in processing for administrative separation.  However, on 1 February 1990 you received NJP for the wrongful use of a controlled substance (cocaine) and the willful destruction of government property.   
 
On 16 February 1990 your command provided you notice that you were being administratively processed for separation from the Navy by reason of misconduct due to the commission of a serious offense, misconduct due to drug abuse, and misconduct due to a pattern of misconduct.  You elected in writing to waive your rights to consult with counsel, submit statements to the separation authority, and to request a hearing before an administrative separation board.  In the interim, you received NJP on 29 March 1990 for UA.  Ultimately, on 11 April 1990 you were discharged from the Navy for misconduct with an other than honorable conditions (OTH) characterization of service and assigned an RE-4 reentry code.  On 9 April 1991 the Naval Discharge Review Board (NDRB) determined that your discharge was proper and that no change was warranted.  
 
Your contention that you suffered from a mental health condition on active duty was fully and carefully considered by the Board in light of the guidance provided by the Secretary of Defense’s Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of  3 September 2014, and the "Clarifying Guidance to Military Discharge Review Board and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment" memorandum of 25 August 2017.  
 
As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records and issued an AO dated 2 November 2020.  The Ph.D. noted that your in-service records did not contain direct or indirect evidence of a mental health diagnosis or psychological/behavioral changes indicating any mental health condition.  The Ph.D. also noted that you did not indicate you experienced any mental health symptoms either on active duty, during your NJP hearings and subsequent administrative separation processing, or on your NDRB application for relief.  The Ph.D. determined that although you have presented evidence of a post-service mental health diagnosis, there was no evidence of a service-connection linking any mental health condition to your active duty service or to your misconduct.  The Ph.D. concluded by opining that the preponderance of the evidence did not support your contention you suffered from a mental health condition on active duty or that your misconduct was attributable to a mental health condition.   
 
The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to:  (a) the pervasive culture of drug use placed you in a pressure-filled environment creating a situation making you vulnerable to use drugs, (b) there were inadequate procedural safeguards in place when you elected your rights in connection you’re your administrative discharge, (c) your post-service conduct have been courageous and upstanding, (d) valid evidence establishes the existence of a service-connected mental health condition, (e) the AO fails to consider subjective and indirect evidence of a mental health issue, and (f) the Wilkie Memo guidance counsels in favor of a discharge upgrade.  However, the Board concluded these mitigating factors and contentions were not sufficient to warrant upgrading your discharge characterization or granting any other relief. 
 
In accordance with the published guidance, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service.  However, the Board concluded that there was no nexus between any mental health conditions or related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge.  Even under the liberal consideration standard, the Board concluded that your misconduct was not due to mental health-related conditions or symptoms.  The Board noted that, despite your unsubstantiated contention regarding a pervasive drug use culture and somehow being coerced into drug use, the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions.     
 
Additionally, regarding your contentions that inadequate procedural safeguards were in place when you elected your administrative separation rights, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumed that you were properly processed for separation and discharged from the Navy.  Moreover, the Board observed that the administrative separation notice you acknowledged and personally signed expressly stated:  “I have received the above letter and I understand its contents.”  (emphasis added).  Your signed notification form was also witnessed by a legal department representative prior to being processed by your chain of command.  The Board determined that your administrative separation was legally and factually sufficient, and concluded that any arguments alleging due process irregularities were not persuasive and without merit. 
 
The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years.  The Board determined that characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a sailor.  Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct clearly merited your receipt of an OTH. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, your desire to upgrade your discharge and all of the assertions and contentions in your petition.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that the misconduct reflected in your discharge outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.  

You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. 

Sincerely,